IN LITIGATION, AS IN LIFE, THINGS WILL GO WRONG: HAVING A STRATEGY IN PLACE

There has been a lot of publicity recently about lawyers who have been struck off for, effectively, making things up to cover up mistakes. In the most recent case a time limit was missed for the First Tier Tribunal and the solicitor sent backdated letters in an attempt to make it appear as if the documents were sent in time. This is, without any doubt at all, deplorable conduct and a failure of the moral compass. I do not attempt to condone it. What this shows, without doubt, it the sense of total panic that must have overcome the lawyer in question. Very little (if any) of the legal curriculum is devoted to what to do when things go wrong.

“There will be moments in your legal career when things go wrong. Maybe even the devastatingly, “the sky is falling” sort of wrong.”

AND GO WRONG THEY WILL…

Experience, it is said, is learning from you own mistakes. (“Training” (and to some extent reading this blog) is learning from the mistakes of others).

“There will be moments in your legal career when things go wrong. Maybe even the devastatingly, “the sky is falling” sort of wrong.”

Legal culture, however, favours the myth of infallibility. Lawyers do not make mistakes. This contrasts with reality, where mistakes are made.

THE REASON THIS IS IMPORTANT

This myth (and again myth it is) of legal infallibility can have profound consequences. The most significant of which is that it can make lawyers reluctant to admit their mistakes at once, or, as in the case above, attempt to hide them. The difficulty is that:

Many mistakes can be rectified if dealt with early.

The “cover up” of the mistake is almost always far more harmful than the mistake itself.

The costs, expense and delay to the client are made much worse.

SO TELL YOUNG LAWYERS (AND REMIND OLDER LAWYERS) THAT MISTAKES WILL BE MADE

Making mistakes does not make you a bad lawyer.

Failing to admit mistakes makes you a bad lawyer (you are never going to learn).

Covering up your mistakes makes you a dishonest lawyer (and probably an ex-lawyer).

Mistakes in litigation, if identified early enough and dealt with promptly enough, can often be rectified, or at very least the consequences minimised.

Far better to face up to a mistake than lose your means of earning a living.

PILOTS LEARN ABOUT CRASH LANDING: LAWYERS DON’T

As a passenger I am comforted by the fact that pilots have regular training on what to if anything goes wrong during the flight. I don’t expect things to go wrong, I certainly don’t want anything to go wrong. However there are good reasons for pilots to be trained in this way. Not least they are learning from mistakes made in the past.

However there is very little by way of equivalent for lawyers. It could be said that the issues are “obvious” and do not need telling. However this does not take into account the sheer feeling of panic that can overtake a practitioner when a mistake has been made. There, are, of course, sometimes issues of ego as well. However the purpose of training and instruction is to ensure that people know what to do.

APPLYING THIS TO CIVIL LITIGATION

The need for contingency planning

Litigators, of all people, should know that things can go wrong. If they did not then there would be no need for litigators. Planning for things to go wrong is not a sign of weakness or defeatism. It is pure realism. All litigation departments have systems in place to ensure that things go right, however your contingency plan provides the essential safety net. Further effective contingency planning will feed back into the department and cut down on mistakes in the first place.

Knowing when things go wrong

Any contingency planning has to have a strategy for recognising when things have gone wrong. In many cases this is obvious. The key point is often when a limitation period is missed, proceedings not served in time or an application made to strike the action, or part of the action or Defence, out.

Who should deal with the file?

When matters go wrong on a file it, normally, becomes the bane of the lawyer’s life. It is often passed onto someone else. Hence the courts often see witness statements that say:

“I now have conduct of this matter because I am the newest/youngest/ most gullible person in the department and everyone else realised that this file was a bag of rats.”

Of course the statement does not say that expressly. However most of our District Judges and Masters have knocked around for while and they can recognised the “hospital pass” file. It is not difficult to read the writing between the lines and Judges are, often, not impressed. Any personal sympathy for the litigator involved is overtaken by anger (if not disgust) with the firm that put the litigator in that situation.

Further it is doubtful whether the new fee earner is comfortable with the file. I have been involved in cases, particularly for large firms, where the assistant solicitor given charge of the matter regarding being handed the “problem” file as somewhat of a blot on their career. They have explained to me that they felt that even being associated with the file would taint their reputation and their prospects. Further because much of the time spent on the file could not be billed they were unwilling to spend enormous amounts of time on it.

Someone sensible, and experienced needs to take this on

If a decision is made that problem files should be moved on (and my Advice is that, subject to the views of the client, they should be at least for the purpose of solving the immediately problem) they need to be moved to someone senior and with considerable, patience, wisdom and experience. There is an abundance of talent in our litigators and, in most firms, someone will fit the bill. Dealing with problem files should be the pinnacle of the litigator’s career. With these files it is often your firm’s money and reputation at stake it is sheer folly to hand the file to someone who is uncomfortable with them, no matter how diligent they are.

Act promptly and act decisively

Usually this involves an application to the Court, or defending an application. This is where things can go wrong and where golden opportunities are missed for things to go right. Any application made hereinafter, should be perfect with the forms accurately completed, witness statements clear, concise and wonderfully drafted and everything lodged and served in good time.

The important thing here is to be clear about the decisions you are making and, if relevant (which it usually is), consult with your indemnity ins

If the position is hopeless then it is prudent to recognised this at once and mitigate the damage as much as you can. Hopeless applications to the court will only increase costs.

Even if the position is, apparently, hopeless there may be other escape routes. For instance the law relating to service of a claim form within the four month period is extremely strict. It will be rare for a court to grant an extension. However:-

If the limitation period has not expired you can issue again. (This is not, automatically, an abuse of process).

If the limitation period has expired, in personal injury cases, then you can make an application under Section 33.

The case may require some lateral thinking. However if the position is hopeless then you must advise your client to go elsewhere.

If the position is salvageable then there are two rules:-

* Don’t make the position worse.

* Do what you can to make the position better.

THE FIRST APPLICATION TO THE COURT IS THE ONE THAT COUNTS

Never make a half-hearted or half-baked application to the District Judge or Master assuming that, since this is only a trivial default, then relief will be granted. This is an extremely dangerous assumption. Firstly the judge may not share your assumption, secondly if you fail in your half-baked attempt this is, effectively, the end of the line.

If you have made a half-baked application to the District Judge with half the evidence missing then, the chances are, the appeal will be considered with only half the evidence available.

DRAFTING THE WITNESS STATEMENT

My advice here is based on this cumulative experience of (at least) several hundred applications in relation to sanctions, relief and limitation, (in other words you are learning from the mistakes made by other people).

(1) Be honest

If you, or your firm, have made a mistake admit it. The person responsible, or the partner responsible for the department, should state clearly that they admit responsibility. In many cases this is blatantly obvious in any event, however most judges respond positively to admissions of responsibility. (All this may be subject to the views of the indemnity insurers).

(2) Be prompt

The issue of delay in making an application is always a relevant factor. Any application should be made within days, not weeks.

(3) Offer explanations and not excuses

This is closely allied to point number (1) above. The court is entitled to know how a party has got itself into this situation and is equally entitled to a detailed explanation. Give the court a clear and concise explanation make it clear that this is an explanation and not an excuse.

(4) Put any default right before you get to the hearing

If you are in default of certain steps and have been guilty of delay then make sure that those steps are taken before the hearing of the application. There is no need to delay the making of an application until the steps are complete, a separate statement can be sworn at a later date if necessary. However if, by the time the matter gets to a hearing, you have taken those steps then this is of great assistance, both to your case and to the court. Do not be put off by any consideration that the costs involved in taking these steps could be wasted, do them and do them properly. A vague promise that these steps will be taken “soon” will not suffice. The facts that the steps have been taken will not guarantee success but will help considerably.

(5) Offer a definite plan of future action

If there are any matters outstanding when the matter reaches a hearing explain the reason for this to the court and offer a definite plan of future action together with a rigorous timetable. Make the timetable both rigorous and realistic, many judges will respond to the offer of a timetable and, particularly if there has been a history of default, impose a series of peremptory orders. If you have suggested an unrealistic timetable then you are creating further problems for yourself.

If you are going to appeal be careful to get it right. File the right documents, give proper grounds of appeal and file a proper skeleton argument.

IF YOU WIN

If you win you cannot afford to relax.

Consider who should deal with the matter in the future.

(1) The matter should not, necessarily, be handed back to the original fee earner (although much depends on the cause of the original problem).

(2) Sometimes a partner takes over conduct of the matter. If the partner is not familiar with this area of the law, or has insufficient time to deal with the matter, this does not help.

Whoever deals with the matter steps should be taken to ensure that the situation is explained to the client and that the action stays on the rails in the future.

LEARNING FROM THE EXPERIENCE

An important point here is that the contingency planner should make sure that the whole firm benefits from the experience of any file that has gone wrong. Steps must be taken to:-

Ensure that the cause of the problem is identified and steps taken to deal with this.

If the problem is one of a system breaking down then the system must be remedied.

If the problem is one of overwork then the litigator’s workload must be examined.

If the problem is one of an individual litigator’s ability. Then consider re-training or re-allocation.

Do your very best to ensure that the specific problem never arises again.

THE CRUCIAL POINT: ENCOURAGING CANDOUR WILL SAVE MUCH TIME AND MONEY IN THE LONG RUN

What is very important is that staff are confident that they will receive help if they rely on the contingency plan. If your staff are not confident of this then mistakes will get hidden or (usually bungled) attempts will be made to remedy the situation. In these circumstances the plan is useless. The earlier you deal with problems the better.

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2 Responses

Chris Ryan · February 8, 2016 at 13:00:44 · →

The one thing that your excellent article does not say is that the firm’s insurers will almost certainly need to be notified as soon as the error is detected and the steps then taken to rectify the mistake cleared with them, particularly they involve making any admissions of fault.

gexall · February 8, 2016 at 14:58:05 · →

It is mentioned I(under the heading “be honest”). However you are correct in that I should have perhaps mentioned this at the outset (a comment from the USA stated that “malpractice” insurers should be notified). The main aim of the post is to encourage openness and to deal with problems at once. I am sure that most “malpractice” insurers will agree with this.